People v. Tuell, No. 80-667

• Court: United States Appellate Court of Illinois
• Writing for the Court: HOPF; LINDBERG; NASH
• Citation: 53 Ill.Dec. 285,97 Ill.App.3d 849,423 N.E.2d 954
• Parties: , 53 Ill.Dec. 285 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kevin L. TUELL, Defendant-Appellant.
• Decision Date: 10 July 1981
• Docket Number: No. 80-667

Page 954

423 N.E.2d 954 97 Ill.App.3d 849, 53 Ill.Dec. 285 PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Kevin L. TUELL, Defendant-Appellant. No. 80-667. Appellate Court of Illinois, Second District. July 10, 1981.

[97 Ill.App.3d 850]

Page 955

[53 Ill.Dec. 286] North, Ohlson, Logli, Boyd & Condon, Paul A. Logli and Peter B. Nolte, Rockford, for defendant-appellant.

Dennis Schumacher, State's Atty., Oregon, Phyllis J. Perko, Martin P. Moltz, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

HOPF, Justice:

Defendant appeals his conviction for reckless driving (Ill.Rev.Stat., 1979, ch. 951/2, par. 11-503).

Defendant raises three issues: (1) that the State failed to produce sufficient evidence to support his conviction; (2) that, given that the State's witness was correct in her account, defendant's conduct did not constitute the offense of reckless driving; and (3) that the court erred in rejecting defendant's alibi evidence.

The sole witness to testify about the events for which defendant was convicted was the complaining witness. She testified that the incident took place in the business district of the town of Stillman Valley between 4:30 and 5 p.m. on December 14, 1979. The witness, about to cross in the middle of the block, noticed a car at the stop sign at the end of the block. She stated that she had time to cross and so started to walk across. The car [97 Ill.App.3d 851] she had seen at the end of the block was moving towards her as she started to cross. It increased its speed as it came toward her and when it was five to eight feet from her she ran quickly to get out of its way. After she crossed the street she got a clear view of the driver as the car turned a corner.

On cross-examination she stated that although she had stepped out onto the street in the middle of the block the area was free of parked cars. She had reached the center of the street when the accelerating car came toward her. The car, she testified, came right down the center of the street about 30 mph and she ran from it when it was five to eight feet from her. She added that she had a clear view of the driver and recognized him as defendant who lived a few houses away from her.

The threshold question is whether the defendant was there at all, so we address the last issue first.

Defendant and his parents presented an alibi based upon the time that marked the end of defendant's working day and the amount of time it took for defendant to arrive home. According to a hand written time card representing defendant's working hours in the family owned business and testimony by defendant and his parents, he had worked until 4:30 p.m. Defendant and his parents further testified that he had arrived home in his father's truck no earlier than 4:50 p.m. They also testified that it was his practice to shower upon returning home; therefore, defendant argues, he could not have left the house in his car unless some time after 5 p.m. An examination of the parents' testimony reveals that they had based their statements more upon their familiarity with defendant's usual routine than upon specific recollection of the events of the afternoon in question.

Page 956

[53 Ill.Dec. 287] Where a defendant presents alibi evidence that conflicts with evidence submitted by the State, it is for the trier of fact to resolve the conflict. (People v. Garza (1981), 92 Ill.App.3d 723, 48 Ill.Dec. 44, 415 N.E.2d 1328.) It was held in People v. Pickens (1978), 63 Ill.App.3d 857, 863, 20 Ill.Dec. 659, 380 N.E.2d 868, that "In weighing alibi testimony it must be remembered that it is sufficient if the defense raises a reasonable doubt of the presence of defendant at the time and place of the crime. 'The burden of proof was on the State to prove the defendant guilty of such offenses beyond a reasonable doubt.' (Citation.)" The trier of fact is not required to believe alibi testimony over positive identification of the accused, even though the alibi testimony may be given by a greater number of witnesses. (People v. Setzke (1961), 22 Ill.2d 582, 177 N.E.2d 168; People v. Pickens.) A court of review will not...